JEWS ARE CALLED — MAN
THE DISTINCTION BETWEEN JEWS AND GENTILES IN TORAH
Rabbi David Bar Chaim

Yeshivat Mercaz HaRav

INTRODUCTION
Over the past few years, there has been a recognizable trend amongst different circles in the religious community — a humanistic/universal inclination. There are many who have written in praise of love, “for all men who were created in the image of G-d.” We have even been “graced” with a pamphlet of this name, Chaviv Adam Sh’nivra B’tzelem, composed and edited by Mr. Yochanan Ben Ya’acov, the Director General of the Bnei Akiva Youth Movement. The explicit goal of those who share this outlook is to prove that all men are equal, that it is forbidden to discriminate against any man on the basis of his race, and that anyone who claims the opposite is nothing but a racist, distorting the words of the Torah in order to fit them to his “dreadful” opinions.

Here are two examples:

A statement by Ms. R. Huberman:
“…I never imagined that the Torah discriminates between one man and the next on the basis of faith, nationality, or race…on the contrary, it is our Torah which teaches that the blood of man is holy simply because he is man: “Whoever sheds man’s blood by man shall his blood be shed, for in the image of G-d made He man” (Genesis 9)…in the Ten Commandments it is written: “You shall not murder”!There is no hint of a restriction, no hint that the prohibition applies to a Jew and not to a Gentile…”

[Former] Member of Knesset (National Religious Party) Professor Avner Shaki:
“The Jews of the State of Israel who received the Torah of Moses on Mount Sinai, where it was established that man was created in the image of G-d, have no need for any…law to teach us this fundamental basic of the Torah, that all men are born equal according to Judaism…man’s equality, man’s status before G-d and before his fellow man, is a primary and fundamental principle in the Jewish Torah…of course, we will not assist any type of racism which discriminates against man because of his color, religion, or nationality…”

(an excerpt from his speech during a discussion in the Knesset on an amendment to the Basic Law of the Knesset and the Penal Law)

We have something very clear before us: all human beings, Jew and Gentile, are equal. As will be further clarified, this outlook completely contradicts the Torah of Moses, and stems from an absolute lack of knowledge, permeated with foreign Western “values.” There would not be any need to respond were it not for the many who are mistaken and lead astray by it.

This outlook has even been expressed by some rabbis whose goal is to show how great and important the stature of the Gentile is in our Torah, and who thereby violate the truth by taking things out of context and inaccurately interpreting the words of Chazal and the Rishonim. A large part of their efforts are centered (due to the “Underground” affair, of course) on an attempt to prove that the prohibition “You shall not murder” also applies to the killing of a Gentile. Here is an excerpt from Rabbi Yehuda Amital, shlita:

“See the Ra’aban on the Gemara Tractate Bava Kama 113a, that the prohibition of‘You shall not murder’ also applies to a Gentile, as is explicitly stated by Maimonides in The Laws of a Murderer, chapter 1, halacha 1. See Yere’im, paragraph 175, that the killing of a Gentile is a subsidiary to the prohibition against murder.”

(From a letter published in Alon Shvut (Yeshiva Har Etzion), issue number 100. His words are cited in the pamphlet previously mentioned, Chaviv Adam Sh’nivra B’tzelem, in an experimental edition, pg.64)

Rabbi Aaron Lichtenstein shlita writes:

“From Maimonides’s words (Mishna Torah, The Laws of a Murderer, chapter 2, halacha 11) it is clear that the prohibition “You shall not murder” applies to a Gentile who fulfills the seven Noahide commandments, and the murderer is punished by death from the Heavens. So on one hand there is no difference in the prohibition of murder between a Jew and a Gentile…”

(From a synopsis of a lecture published in Keshet B’Anan number 32, Gesher, and cited in the above mentioned pamphlet, pg.72.)

The followers of these rabbis continue their path:

“…‘You shall not kill’! This is an absolute prohibition, an unambiguous command that does not distinguish between Jew and Gentile…”

Later on it will become clear how misleading and deceptive these matters are.

Not only about this halacha are things written which are liable to mislead the public. For example, Rabbi Lichtenstein writes:

“The field of the Torah…is also relevant to the world of the Noahide, but there is no doubt that as far as the extent is concerned…the study of Torah is much less in the world of the Gentile than in our world.

Rabbi Meir’s words in Tractate Sanhedrin 59a and the beraitha in Torat Cohanim are well known: even a Gentile who sits and learns Torah receives reward…an additional emphasis on the great and exalted study of Torah being relevant to the world of the Gentile.” (From his essay, Bnei Adam, in the monthly publication Emda, Number 3, pg.16, and in the previously mentioned pamphlet, pg.74.)

It is amazing that he forgot to point out everything said there on this matter, particularly the conclusion. How could he not mention that Rabbi Meir’s words were brought in order to disagree with Rabbi Yochanan who said: “A Gentile[1] who studies Torah is punishable by death, as it is said: ‘Moses commanded us the Torah as an inheritance,’ for us it is an inheritance, and not for them”? The conclusion is most important — in order to settle the conflicting statements the Talmud answers, “In this case, he is engaged in the seven Noahide commandments” (He is engaged in the halachas of those seven commandments to be skilled in them — Rashi). He is permitted to study those specific seven Noahide commandments — and if he learned more than this, he is punishable by death. So the Tosaphot wrote in Tractate Avodah Zara 3a, s.v. sh’afilu, and Maimonides in The Laws of Kings, chapter 10, halacha 9, writes: “A Gentile who engaged in Torah is punishable by death.[2] He should not engage in anything other than their seven commandments alone.” The distance between what was said in the Talmud and Rabbi Lichtenstein’s words is great.

In the previously mentioned essay Rabbi Lichtenstein writes further:

“The field of prayer also exists as a universal value…this has been said in connection to the Holy Temple at its inception (I Kings 8:41-43); this is part of the prophecy of the end of days: ‘For my house will be called a house of prayer for all the nations.’ There is also room for the Gentile to come and pray in the Holy Temple!”

How is it possible to say such things? Indeed, we have learned a complete Mishna (Kalim, chapter 1, mishna 8): “…Inside the walls of the Temple Mount is holier, and therefore Gentiles and one who has been defiled by the dead cannot enter there…” thus Maimonides ruled in The Laws of the Holy Temple,
chapter 7, halacha 16. There is no way for a Gentile “to come and pray in the Holy Temple”! The matter is clear: a Gentile can pray, even on the Temple Mount, but not in the Holy Temple.

An additional proof of the Gentile’s stature, according to Rabbi Lichtenstein:

“Animal sacrifices are conceived by us as being of authentic Jewish character, but they definitely belong, in the pure sense of the halacha, also to the world of the Gentile: a Gentile offers animal sacrifices not just on any altar…but in the Holy Temple” (from the above mentioned essay).

Aside from what has been previously clarified, that there is absolutely no possibility of a Gentile entering the Holy Temple, much less of offering sacrifices there, this statement, like the one before it, does not reflect the position of “pure halacha” on this topic. There is a discrepancy between Rabbi Akiva and Rabbi Yosi the Galilean in the Sifra on the portion of Emor, parsha 7, halacha 1, and in the Tosephta, Shekalim, chapter 1, halacha 7 (Zukermandel and Leiberman editions, in the Vilna printing, halacha 3), and brought in Tractate Menachot 73b, concerning which sacrifices can be accepted from a Gentile. Maimonides ruled based on Rabbi Akiva[3] (The Laws of Sacrifices, chapter 3, halacha 2): “Men or women or slaves can bring sacrifices. But from the Gentiles we only accept burnt offerings as it is said: ‘From the hand of a Gentile do not offer the bread of your Lord’…but we do not accept from them peace-offerings, nor meal-offerings, nor sin-offerings or guilt-offerings…” In connection to this we must add that even if a Gentile volunteered to donate money in order to have a part in the public sacrifices, we do not accept it from him, as it is cited in the Sifra, chapter 7, halacha 12, and in Shekalim, chapter 1, mishna 5, and Maimonides wrote in The Laws of Shekalim, chapter 1, halacha 7: “Everyone is obliged to give half a shekel…but from the Gentiles who gave a half shekel, we do not accept it.” Generally speaking — there is no equality of rights for a Gentile, not in their entrance to the Holy Temple nor in their offering of sacrifices there.

It seems that these examples are sufficient to clarify the reason for writing this essay. Now let us consider a long list of sources that clearly contradict the previously mentioned opinions. First we will focus on halachic matters, and afterwards on the spiritual realm. It must be noted that I plan to deal only with halachot that illustrate the vast distinction the Torah makes between Jews and Gentiles. I do not intend to examine the topic of the status of Gentiles in the Torah in its entirety. For example, how and to what extent can the Gentile serve G-d according to the Torah, and what is his reward for this? What is possibilities are open for Gentiles residing in the land of Israel? What is the law for Gentiles who are at war with us or hostile towards us? I will not deal with these and similar matters — for this is not my purpose. (These matters are connected to specific situations and details, whereas the purpose of this essay is the overall, consistent distinction between Jew and Gentile.) The same is true concerning the second part of the essay, which will deal with the spiritual realm.

Between Jews and Gentiles – In Halacha
A. KILLING A GENTILE
It is written in the Torah (Leviticus 24:17): “He who kills any man shall surely be put to death,” and it is also stated in the portion of Mishpatim (Exodus 21:14): “But if a man comes upon his neighbor with intent, to slay him with guile, you shall take him from my altar that he may die.” On the latter verse it is stated in Mechilta (Masechta D’Nezikin parasha 4): “‘But if a man comes with intent’ — Why was this stated? Since it is stated ‘And he that kills any man…,’ perhaps this also speaks of one who kills on purpose, in error, and others: a healer who killed [his patient], one who inflicts [deadly] blows with permission of Beit Din, a father who tyrannizes his son or student [to death] — is this what it implies? It is taught: ‘But if a man comes with intent’ — to exclude [one who kills in] error, ‘man’ to exclude the minor, ‘man’ — to include the others, ‘his neighbor’ — to include the minor, ‘his neighbor’ — to exclude the others.” Isi the son of Akiva says: “Before the giving of the Torah we were warned concerning the spilling of blood. After the giving of the Torah, instead of being more severe, they were more lenient. In truth they said he is exempt from the rule of man, and his judgement is the hands of Heaven.”

We learn from the Mechilta that a Jew who killed a Gentile with intent is not put to death by the Beit Din, as he would be had he killed a Jew. The halacha is the same concerning a ger toshav, as is explicitly stated in the Mechilta of Rabbi Shimon bar Yochai on the above mentioned verse: “‘Upon his neighbor’ — with the exception of others, ‘his neighbor’ — with the exception of the ger toshav. Perhaps I ought to exclude the others, for they do not have commandments similar to the Jews, yet I ought not exclude the ger toshav who has commandments similar to the Jews. It is taught: ‘his neighbor’ — with the exception of the ger toshav.” Likewise it is written in Sifri on the portion of Masaei, paragraph 160, see there, and in Sifri Zuta on the portion of Masaei, 23: “Upon his neighbor — with the exception of theger toshav.”[4]

Similarly we learn in the Mishnah, Sanhedrin chapter 9, mishnah 2: “One who intended to kill an animal [and instead] killed a man, [intended] to kill a Gentile [and instead] killed a Jew, [intended to kill] a fetus [and instead] killed a child who is able to exist outside the womb, [he is] exempt.” These, too, are the words of Maimonides in The Laws of a Murderer and Saving Life, chapter 2, halachas 10 and 11 (in manuscripts it appears as a single halacha): “One who kills a Jew or kills a Cannanite slave is put to death for this. And if he killed unintentionally, [he is] exiled.A Jew who kills a ger toshav is not put to death for this by a Beit Din, as it is said: ‘But if a man comes upon his neighbor with intent.’ And it need not be said that he is not put to death for [the killing of] a Gentile. The same for one who kills the slave of another, or kills his own slave — he is put to death for this, for the slave has already accepted upon himself commandments and is [therefore] included in the inheritance of G-d,” and so the Tosaphot has written in the Talmud, Tractate Makkot 9a, s.v. k’savur.

In contrast, a ger toshav (and all the more so a Gentile) who killed a Jew, even unintentionally, is put to death, as we learned in chapter 2 of Tractate Makkot, mishnah 3, and in the Gemara there (9a), and as Maimonides wrote in chapter 5 of The Laws of a Murderer and Protecting Life, halacha 4: “A ger toshav who killed a Jew without intent — even though he did it unintentionally, he is put to death.”

However, it must be emphasized that one cannot take this as permission to kill a Gentile. In the aforementioned Mechilta it clearly states the opposite — “his [one who kills a Gentile] judgement is in the hands of Heaven” — so it is forbidden. See further in Tosephta, Avodah Zarah chapter 8, halacha 5 (Zukermandel edition, in the Vilna edition it is chapter 9, halacha 4): “On the spilling of blood, how? …a Jew [who killed a] Gentile is exempt,” for one who kills is exempt [from punishment by Beit Din], however [this action is] prohibited, and in Sanhedrin 57a on this beraitha it is stated: “There, how should we learn the beraitha, prohibited [for a Gentile to kill a Gentile or a Jew] and permitted [for a Jew to kill a Gentile]? Yet we have learned in a beraitha that Gentiles and shepherds of small cattle are not raised [from the pit] nor lowered [into it]?” –so there is a prohibition against the killing of a Gentile. However, we have not found in the words of Chazal a definition of the prohibition, and the Rishonim are in dispute on this matter.

The opinion of the HaRa’aban is that one who kills a Gentile transgresses the negative commandment of “You shall not murder” and these are his words in the commentary on Bava Kama paragraph 22 (page 74d)[5]: “… ‘You shall not steal’ is similar to ‘You shall not murder’ and ‘You shall not commit adultery’[6] in that it refers both to Jew and Gentile.”

This is not the opinion of Maimonides in the beginning of The Laws of a Murderer and Protecting Life: “One who kills a Jew transgresses a negative commandment as it is stated: ‘ You shall not murder’.”[7] Maimonides also wrote something similar in Sefer HaMitzvot, negative commandment 289, and Rabbi David HaKochavi restated it in his Sefer HaMitzvot, negative commandment 289. Likewise, it is written in Yere’im paragraph175 (Schiff edition, in other editions paragraph 248): “…and it is called murder only concerning a Jew, as it is written: ‘who murders his neighbor’ — the murder of one’s neighbor is called murder, but the murder of a Gentile it is not called murder.” And in the continuation of his statement: “Subsidiary [prohibition] of murder: not to kill a Gentile, as we learned in the beraitha in Avodah Zarah chapter 2 (page 26a): The Gentiles and shepherds of small cattle are not raised [from the pit] nor lowered [into it].”[8] According to Maimonides, the Yere’im, and Rabbi David HaKochavi, one who kills a Gentile does not transgress the negative commandment ‘you shall not murder.’[9]

Summary

One who kills a Gentile, and even a ger toshav, is not put to death for this by the Beit Din, even if he kills him with intent. This is clearly stated in the Torah and in the words of Chazal.
In the opinion of the HaRa’aban, one who kills a Gentile transgresses the negative commandment of “You shall not murder,” and in the opinion of Maimonides, the Yeare’im, and Rabbi David HaKochavi, the murder of a Gentile is not included in this negative commandment. However, according to all opinions there exists a prohibition in this matter, as is clear from the words of Chazal.
So the Torah differentiates between a Jew and a Gentile with regards to the killing of a man.

B. SAVING OF LIFE
Regarding the subject of saving a life, too, the Torah differentiates between a Jew and a Gentile. We learn in chapter 8 of Tractate Kippurim (Yoma) mishnah 45 (in the Vilna edition mishnah 47): “One upon whom the ruins of a building collapsed and there is doubt whether he is there or not, whether he is alive or dead, whether he is a Jew or a Gentile, we clear off [the rubble]. If they found him alive, they clear off [the rubble], if dead, they leave him there.” The Talmud explains on page 85a: “It is needless to say ‘there is doubt whether he is alive or dead’ if he is a Jew, but even if we are uncertain whether he is a Gentile or a Jew we clear off [the rubble],” and thus wrote Maimonides in chapter 2 of The Laws of the Sabbath, halacha 21 (in the Vilna edition, halacha 20): “If there was a courtyard with both Gentiles and Jews, even one Jew and a thousand Gentiles, and the ruins of a building collapsed upon them, we clear off the rubble from everyone for the sake of the Jew. If one of them moved to another courtyard and it collapsed upon him, we clear [the rubble] off him, for perhaps the one who moved [to the other courtyard] is the Jew and the ones who remained are the Gentiles.” Likewise in the Tur and the Shulchan Aruch, Orach Chaim, paragraph 329, section 3.[10]

It must be pointed out that a Jew who wanted to engage himself in the saving of the life of a Gentile which involved a transgression of the Sabbath, and did so in front of witnesses and after being warned, is put to death by the Beit Din — this is self evident.

C. DEATH BY A BEIT DIN
IT IS WRITTEN IN THE TORAH (DEUTERONOMY 19:15): “ONE WITNESS SHALL NOT RISE UP AGAINST A MAN FOR ANY INIQUITY, OR FOR ANY GUILT, IN ANY SIN THAT HE MAY COMMIT: AT THE WORD OF TWO WITNESSES, OR AT THE WORD OF THREE WITNESSES, SHALL THE MATTER BE ESTABLISHED.” AND IN THE SIFRI (SHOFTIM, PARAGRAPH 188) IT IS WRITTEN: “THUS FAR WE [LEARN] IT WITH REGARDS TO THE CAPITAL LAWS; FROM WHERE DO WE LEARN IT CONCERNING MONETARY LAWS? IT IS WRITTEN, ‘FOR ANY INIQUITY.’ FROM WHERE DO WE LEARN IT CONCERNING [TRANSGRESSION FOR WHICH ONE MUST BRING] SACRIFICIAL OFFERINGS? IT IS WRITTEN, ‘OR FOR ANY GUILT.’ WHERE DO WE LEARN IT CONCERNING [TRANSGRESSIONS PUNISHABLE BY] LASHES [BY A BEIT DIN]? IT IS WRITTEN, ‘IN ANY SIN THAT HE MAY COMMIT’…” MAIMONIDES WROTE SIMILARLY IN THE BEGINNING OF CHAPTER 5 OF THE LAWS OF TESTIMONY: “NO VERDICT OF JUDGEMENT MAY BE MADE BASED ON THE TESTIMONY OF ONE INDIVIDUAL, NEITHER IN MONETARY LAWS NOR IN CAPITAL LAWS, AS IS WRITTEN: ‘ONE WITNESS SHALL NOT RISE UP AGAINST A MAN FOR AN INIQUITY, OR FOR ANY GUILT’…”
Likewise, one is not put to death by a Beit Din, even if there were several witnesses to his transgression, without forewarning, as we learn in the beginning of chapter 5 of Tractate Sanhedrin: “They [a Beit Din] would investigate them [the witnesses] with seven interrogations: Which week? Which year?…Do you recognize him? Did you warn him?…” and there in the Talmud (Sanhedrin 40b): “Ula said: From where [do we learn] forewarning from the Torah? As it is said: ‘And if a man shall take his sister, his father’s daughter, or his mother’s daughter, and sees her nakedness.’ Is this matter contingent on ‘seeing?’ Rather, until it is made perfectly clear to him [that sexual relations with her are forbidden to him — Rashi]…In the school of Hizkiya they learn it thus: ‘But if a man comes upon his neighbor with intent to slay him with guile’ — [this speaks of a case] when he was forewarned, yet he still came with intent. In the school of Rabbi Ishmael they learn it thus: ‘…those who find him gathering sticks,’ [it is mentioned in the present tense to teach us that] they forewarned him, yet he continued to gather sticks” (see there; in the Jerusalem Talmud there are other ways of learning the requirement of forewarning). Thus Maimonides wrote in the beginning of chapter 12 of The Laws of Sanhedrin: “How are capital cases judged? When witnesses come to the Beit Din… the judges say to them: ‘Do you recognize him? Did you forewarn him?’ If they say [11] ‘We do not recognize him,’ or ‘We are not sure,’ or they did not forewarn him, behold, [he] is exempt.”

This is the way concerning a Jew. With regards to a Gentile, however, it is taught in Sanhedrin 57b: “Rabbi Jacob bar Acha found it written in an Aggadic book from the school of Rav: a Gentile is put to death by one judge and by one witness, even if he was not forewarned, by testimony of a man and not of a woman, and even of a family member. In the name of Rabbi Ishmael they said: Even for [the killing of] a fetus.” Thus Maimonides wrote in chapter 9 of The Laws of Kings and Wars[12]halachas 4 and 14 — these laws were stated concerning a Gentile, in contrast to the laws concerning a Jew. (A Jew is not put to death for killing a fetus as it is stated in chapter 5 of Tractate Niddah, mishnah 3: “A one-day old baby becomes impure by discharge…and one who kills him is liable…” and see the reason for this in Rashi on Sanhedrin there, s.v. af al ha’ubarin, and in the Gemara, Tractate Niddah there. Similarly, verdicts on capital cases where a Jew is accused may be made only by a Beit Din of twenty three members, as we have learned in Sanhedrin chapter 1, mishnah 4. Likewise regarding the laws of testimony: the testimony of a family member is invalid for a Jew, as it says in Sifri, paragraph 280, on the verse: “Fathers shall not be put to death for children”: “…fathers shall not be put to death by the testimony of children, and children shall not be put to death by fathers. When it says ‘and children,’ it includes family members…”).

We clearly see that the Torah is much stricter about the procedures of judgement when dealing with the life of a Jew than it is when dealing with that of a Gentile.

D. DAMAGE BY A GENTILE
It is written in the Torah: (Exodus 21:35): “If a man’s ox injures his neighbor’s ox and it dies, they shall sell the live ox and divide the money received for it; they shall also divide the dead animal.” In the Mechilta (Tractate Nezikin section 12) it is said: “‘A man’s ox’ — to exclude the ox of a minor, ‘a man’s ox‘ — to include the ox of others.‘ His neighbor’s ox,’ to include [the ox of] a minor, ‘his neighbor’s’ to exclude [the ox] of a Gentile, the ox of a Samaritan, the ox of a ger toshav.” And in the Mechilta of Rabbi Shimon bar Yochai it is stated: “‘His neighbor’s,’ — to exclude others, to exclude the ger toshav. Is it possible no payment will be made to a Gentile or that a Gentile will not pay him? It is taught: ‘He shall surely pay,’ to include [the payment of] a Gentile and of a ger toshav. Is it possible that they pay for an innocent [ox] half the damage, and for a notorious [ox] full damage? It is taught: ‘His neighbors’ ox,’ the ox of his neighbor is dealt with in such a manner, and not [the ox] of others, concerning whom it is stated: ‘He appeared from Mount Paran’ (Deuteronomy 33:2), — [G-d] appeared disfavoring all the inhabitants of the world [in contrast to the Jews].”

Furthermore, there is an explicit mishnah in Tractate Baba Kama 4:3: “An ox of a Jew who injured an ox which was dedicated [to the Temple] or a dedicated ox which injured an ox of a Jew is exempt, as it is written: ‘his neighbor’s ox’ — and not a dedicated ox. An ox of a Jew who hurt an ox of a Gentile[13] is exempt. An ox of a Gentile who hurt the ox of a Jew — whether it is an ox who was harmless before or an ox which has been proven dangerous, [the owner] must pay the full damage.” A Jew who causes damage to a Gentile is always exempt, however a Gentile who causes damage to a Jew must pay the full damage in every case. And thus it is in Maimonides, chapter 8 of The Laws of Property Damage, halacha 5, and in the Tur and Shulchan Aruch Choshen Mishpat, beginning of paragraph 406. The distinction between a Jew and a Gentile is clear.[14]

It is appropriate to cite the words of Maimonides in his explanation of the mishnah in Bava Kama there: “If there was a legal case between a Jew and a Gentile, then the manner of judging between them is as I will explain: if we [i.e., a Jew] will win under their laws, we judge them according to their laws and say to them: this is your law! If it is better that we judge according to our laws, we judge them according to our laws and say to them: this is our law![15] And do not find it difficult, and don’t be surprised by it, just as one is not surprised about the slaughter of animals even though they have done no harm, for one in whom human characteristics are not complete is not truly a man, and his end purpose is only for ‘man’ [that is to say, the entire raison d’etre of the Gentiles is only for the benefit of the complete man — comment by Rabbi Y. Kapach shlita in his edition of Maimonides’s Commentary on the Mishnah], and the discussion on this matter requires a separate book.”

E. ROBBERY AND THEFT OF A GENTILE
With regards to robbery and theft from a Gentile, the Tanna’im disagreed, and subsequently so did the Rishonim, whether the prohibition is from the Torah or only Rabbinic.

It is explained in the Jerusalem Talmud, chapter 4 of Bava Kama, halacha 3: “It happened that the [Roman] kingdom sent two officials to learn Torah from Rabban Gamliel. They learned from him Scripture, Mishnah, Talmud, Halacha, and Aggadah. In the end they said: your entire Torah is fine and praiseworthy, except for these two matters which you say — a Jewish woman should not be a midwife for a Gentile woman, but a Gentile woman can be a mid-wife for a Jewish woman, and a Jewish woman cannot breastfeed the son of a Gentile woman, but a Gentile woman can breastfeed [the child of] a Jewish woman with her permission; robbery of a Jew is forbidden, but robbery of a Gentile is permitted. At that moment Rabban Gamliel issued an edict that what is stolen from a Gentile is forbidden because of the desecration of G-d’s name.” According to the Jerusalem Talmud, that which is stolen from a Gentile is forbidden because of Rabban Gamliel’s edict and it is only a Rabbinic prohibition. Likewise it is written in Sifri on the portion of V’zot HaBracha, section 344, except that the edict of Rabban Gamliel is not mentioned there.

This is also what is written in the Tosephta, Avodah Zarah chapter 8, halacha 5 (in the Zuckermandel edition; in the Vilna edition it is chapter 9, halacha 4): “…Regarding theft — a thief, a robber, one who takes a [captive] beautiful woman, and the like — these are things it is forbidden for a Gentile [to perpetrate] against a Gentile, or [against] a Jew, but it is permissible for a Jew [to perpetrate] against a Gentile.”

Thus Rashi wrote on the aforementioned beraitha which appears in Sanhedrin 57a, s.v. yisrael b’goy mutar: “For ‘You shall not exploit your neighbor’ is written, and it is not written ‘a Gentile,’ but there is a Rabbinic prohibition, according to the one who says that robbery of a Gentile is forbidden because of desecration of G-d’s name in the last chapter ‘HaGozel’ [chapter 10 of Bava Batra].” Thus it also appears in Bava Metzia 111b: “And since the first Tanna learned the law from the phrase ‘his brother,’ what does he do with the phrase ‘his neighbor’? That phrase comes to teach something in his view also, as stated in the beraitha: ‘his neighbor’ — and not a Gentile. But isn’t it appropriate to learn that a Gentile is excluded from the phrase ‘his brother’? One [phrase] comes to permit exploiting him [a Gentile] and the other comes to permit robbing him, as he holds that robbery of a Gentile is permitted.”[16] And so it is determined in the commentary attributed to the Ran on Tractate Sanhedrin 57a. Thus, too, ruled the Rama in Even HaEzer, paragraph 28, section 1, and also the Maharshal in Yam shel Shlomo on Bava Kama, paragraph 20.[17]

In contrast, it is explained in Torat Cohanim on the portion of Behar Sinai, beginning of chapter 9 (and it appears in Bava Kama 113a with differences): “Rabbi Shimon says: from where do we learn that stealing from a Gentile is forbidden? It is written: ‘after he [a Jew] is sold [to Gentiles].’ Perhaps one can take him by force and leave? [Take the Jew by force from the Gentile’s house without paying, to steal him from the Gentile — commentary attributed to Rabbi Simon Sens]. It is taught: ‘He shall be redeemed.’ Perhaps one can deceive him? [Fool the Gentile and treat him like an imbecile in order to buy his slave cheaply — ibid..] It is taught: ‘He shall reckon with the one who bought him’ — to be precise with him… If the Torah is so strict in [forbidding] robbery of a Gentile, how much more so concerning robbery of a Jew.” It is explained that robbery of Gentiles is prohibited, and the plain meaning of the beraitha is that this prohibition is from the Torah, as the GRA wrote in his commentary on Choshen Mishpat, paragraph 348, section 8, and as the Radbaz wrote in his Responsa, part 2 paragraph 1276.[18]

Thus it also appears in Sifri on the portion of Ki Teze, section 266: “‘When you come into your neighbor’s vineyard’ — ‘your neighbor’s,’ to exclude others, ‘your neighbor’s,’ to exclude a vineyard dedicated to the Temple…” (‘To exclude others’ — that is to say, the vineyard of Gentiles, for concerning ‘your neighbor’s’ it is written: ‘But you shall not put any in your vessel’ — so in the vineyard of a Gentile it is permitted, and it is derived according to the one who says that view which states that generally robbery of a Gentile is forbidden… — commentary of Rabbeinu Hillel.) Thus it also appears in Tractate Bava Metzia 87b: “…in your neighbor’s vineyard and not in the vineyard of a Gentile. It is understandable according to the one who says robbery of a Gentile is forbidden, that is to say, we need this verse to permit a robbery to a worker…” According to these Tanna’im, robbery of a Gentile is forbidden by the Torah. Likewise it is stated in Seder Eliyahu Rabba (Tanna d’vey Eliyahu) chapter 16 (in the Ish Shalom edition, in other editions it is chapter 15), see there. See further the Tosephta on Bava Kama, chapter 10 halacha 15 (in the Vilna edition, halacha 8).

Maimonides wrote at the beginning of The Laws of Theft: “Anyone who steals property worth the value of a prutah and above transgresses a negative commandment, as it says: ‘You shall not steal’… no matter if he steals money from a Jew or the money of a Gentile idolater…” In The Laws of Robbery and Lost Items, chapter 1 halachas 1 and 2, he wrote: “Anyone who steals from a his fellow something worth a prutah transgresses a negative commandment, as it says: ‘You shall not steal’…and it is forbidden to steal anything according to the ruling of the Torah. It is forbidden to rob or exploit even a Gentile idolater, and if one robs or exploits him, he must recompense him.”[19] This is also the opinion of the Tur and the Shulchan Aruch in Choshen Mishpat, paragraph 348, section 2, and in the beginning of paragraph 359. Thus also ruled the Gaon of Vilna there, paragraph 348, subsection 8, and in Even HaEzer, paragraph 28, subsection 5, and the Ridbaz in the aforementioned responsum. (It is appropriate to note what the Ridbaz wrote: even though stealing from a Gentile is forbidden by the Torah, one does not transgress a negative commandment by doing it; it is also explained so in Likutei HaGRA on Maimonides, and according to this, once again there is no equality between a Jew and a Gentile). See Chidushei Rabbi Akiva Eiger, paragraph 359, where he proved that according to the view which holds that stealing from a Gentile is prohibited, the prohibition stems from the Torah.

However, even according to Maimonides’s opinion that stealing from a Gentile is forbidden from the Torah and that consequently one transgresses a negative commandment by doing it, we find nevertheless found in his words a distinction between a Jew and a Gentile, for thus he wrote in The Laws of Robbery, chapter 6, halacha 7: “The Sages prohibited many things on account of robbery, and one who transgresses these matters is a robber according to their words — for example, pigeon racers and dice rollers,” and there in halacha 11: “one who plays dice with a Gentile does not transgress the prohibition of robbery, but he transgresses the prohibition of engaging in idleness, for it is not worthy of man to engage himself all the days of his life in matters other than words of wisdom and cultivation of the world.” That is, in this issue also a Gentile is not completely equal with a Jew. See in the Tur and Shulchan Aruch, Choshen Mishpat, paragraph 370 who brought the words of Maimonides and did not dispute him on this matter, and the SM’A in subsection 4 and in the Prisha in subsection 7. The GRA, in subsection 7, agreed with him.

F. THE LOST ITEM OF A GENTILE
It is written in the Torah (Deuteronomy 22:2): “You shall not see your brother’s ox or sheep going astray and hide yourself from them. You shall surely bring them back to your brother.” It is also stated (Exodus 23:4): “If you meet your enemy’s ox or his ass going astray, you shall surely bring it back to him.” In the Mechilta of Rabbi Shimon bar Yochai on the latter verse it is written: “‘Your brother’s ox’ — I only have [learned about] my brother, from where [do I learn about] my enemy? It is written: ‘your enemy’s ox’ anyway. Perhaps this is also the case concerning others? It is written: ‘your brother,’ as your brother is your partner, so too, any man who is your partner.” And in Tractate Bava Kama 113b: “Rabbi Bibi bar Gozla said in the name of Rabbi Shimon Chasida: robbery of a Gentile is forbidden… his lost item is permitted, similar to what Rav Chama bar Guryeh said in the name of Rav: from where do we know that the lost item of a Gentile is permitted? As it says: ‘In like manner shall you do with his ass; and so shall you do with his garment; and with every lost thing of your brother’s’ — every lost thing of your brother’s and not every lost thing of a Gentile. It was taught in a beraitha: Rabbi Pinchas ben Yair said, in any instance where there is a desecration of G-d’s name, even his [a Gentile’s] lost item is forbidden…”[20]

We learn in Tractate Machshirin, chapter 2 mishnah 8: “One who finds a lost item — if the majority [in the surrounding area] are Gentiles, he does not have to publicly announce his finding; if the majority are Jews, he must publicly announce it; if half are Gentiles and half are Jews, he must publicly announce.” Thus wrote Maimonides in the beginning of chapter 11 of The Laws of Robbery and Lost Items: “One who returns a lost item to a Jew fulfills a positive commandment, as it says: ‘You shall surely bring them back to your brother.’ One who sees a lost item of a Jew and ignores it and leaves it there transgresses a negative commandment, as it says: ‘You shall not see your brother’s ox and hide yourself from them,’ and he also abandons a positive commandment. And if he returns it, he fulfills a positive command.” But in halacha 3 he wrote: “A lost item of a Gentile is permitted, as it says: ‘Every lost thing of your brother’s’.” Thus it is explained in the Tur and Shulchan Aruch Choshen Mishpat, paragraph 266, section 1.

In addition, it is explained in Sanhedrin 76b: “Rabbi Yehuda said in the name of Rav: one who marries his daughter to an elderly man, and one who marries his son of minor age to a woman, and one who returns a lost item to a Gentile, concerning him the verse says, ‘To add drunkenness to thirst: the Lord will not spare him’.” These are the words of Maimonides there, halacha 3: “If one returns a lost item [to a Gentile] to sanctify G-d’s name, in order that the Gentiles glorify the Jews, and know that they [the Jews] are a faithful people — this is praiseworthy. In a case where there is a desecration of G-d’s name, his [a Gentile’s] lost item is forbidden, and he [the Jew] is obligated to return it…”. The Tur and the Shulchan Aruch wrote similarly there. (In regards to what Maimonides wrote “If he returned the lost item to sanctify…,” this is according to the Jerusalem Talmud, chapter 2 of Tractate Bava Metzia, halacha 5 — but it is important to emphasize that one cannot learn general permission from this, as the Maharshal wrote in Yam shel Sholomo, chapter 10 of Bava Kama, section 20: “G-d desires a man’s heart [aspiration to worship Him], therefore [one may do it] if this is his intention [to sanctify G-d’s name], however if his intention is that he, and not the faith of Israel, should be praised, or because he loves the Gentile and has mercy on him, it is forbidden [to return the Gentile’s lost item].”)

The Error of a Gentile
The error of a Gentile [i.e., property of which he deprived himself due to an error] is permitted, similar to the case of his lost item.[21] Thus it is explained in Bava Kama 113b: “Shmuel said: and his error is permitted.” However, the Rishonim disagree about whether it speaks of a case where a Gentile erred in his calculation on his own or if it is permitted to deceive him. In the opinion of Rashi, there (s.v. v’ivla lei zuza) it is permitted to deceive him, in accordance with Rashi’s opinion which was clarified above, that stealing from a Gentile is permitted. The Tosaphot also wrote there, s.v. ya’chol, that it is permitted to deceive a Gentile, however only if he cannot discover it and it won’t cause a desecration of G-d’s name. This is also the opinion of the Tur in Choshen Mishpat, paragraph 348, section 3: “However, his error — that is, to deceive him in calculations or to raise his loan — is permitted, but only if it will not become evident to him — for in such a situation there is no desecration of G-d’s name.”[22]

But this is not the opinion of Maimonides, who wrote in chapter 11 of The Laws of Robbery and Lost Items, halacha 4: “The error of a Gentile is similar to his lost item and is permitted — that is, if he erred on his own, but to deceive him is forbidden.” Likewise he wrote in the beginning of chapter 18 of The Laws of Transactions. This is also the opinion of Rabbeinu Chananel (brought in Shita Mikubetzet; in Aruch, entry plez, it is brought without attribution) of the Rif, of the HaRaviyah (brought in the Mordechai, paragraph 158, and in Or Zarua there on Bava Kama), of the Mordechai, and of the Nimukei Yosef.

The Rama in Choshen Mishpat, paragraph 348, section 2, brought both opinionsand did not determine in this matter; however, the Maharshal ruled in Yam shel Shlomo (chapter 11 of Bava Kama, paragraph 20) that it is forbidden to deceive a Gentile, and this is the intent of the Gaon of Vilna there, subsection 13.

In any case, the entire essence of this dispute is specifically concerning a Gentile, for with regards to the error of a Jew, everything must be recompensed, as it appears in a number of places, including Kiddushin 42b: “Rava said: anything concerning [faulty] measurements, weights or calculations, even if they are of minimal value, is also recompensed,” and so wrote Maimonides in the beginning of chapter 15 of The Laws of Transactions, and the Tur, and the Shulchan Aruch in Choshen Mishpat, paragraph 232.

H. Abduction
It is written in the Ten Commandments (Exodus 20:13): “You shall not steal,” and also there (21:16): “Whoever steals a man and sells him — if he is found in his hand, he shall be put to death.” In Mechilta, Yitro section 8 it is explained: “‘You shall not steal’ — why is this stated? Since it says ‘And he that steals a man, and sells him’ — his punishment is stated, from where do we learn a warning? It is written: ‘You shall not steal,’ this is a warning with concerning abduction.” In Deuteronomy 24:7 it says: “If a man is found stealing any of his brethren of the children of Israel and maltreating or selling him, that thief will die: and you shall eliminate evil from within you” — so it is clearly stated in the Torah that only for abduction of a Jew is one punished by death.

In Sifri on the portion of Ki Teze, paragraph 273: “Stealing any of his brethren — and not others” (that is, Gentiles — commentary of Rabbeinu Hillel). Thus we also learn in the beginning of chapter 11 of Sanhedrin: “These are the ones who are [put to death by] strangulation: one who hits his father and mother, and one who abducts a Jew…” And this is the wording of Maimonides in The Laws of Theft, chapter 9, halacha 1: “Anyone who steals a Jewish person transgresses a negative commandment, as it says: ‘You shall not steal.’ And there in halacha 6: “No matter whether he abducted [one born] a Jew or a convert or a manumitted slave, as it says: ‘Any of his brethren,’ and these are considered our brothers in Torah and commandments. However, one who steals a slave or a man who is half-slave/half-free is exempt” — in any case, we learn that one who abducts a Gentile is exempt.